V. Sesha Ayyar vs Venkatasubba Chetty and Others

Odgers, J.—This is a revision petition against the order of the Sub-Divisional Magistrate of Trichinopoly, acquitting accused Nos. 2 to 5,

who were charged before him, u/s 55(1) of Madras Act (V of 1920) and Section 109, Indian Penal Code. The Magistrate was wrong in saying

that be acquitted the accused u/s 245, Criminal Procedure Code. What he really did was to refuse to entertain or proceed with the complaint, on a

legal point raised by the defence. The Magistrate rightly held that as no sanction had been obtained u/s 196, Criminal Procedure Code, as

amended by Section 3 of Act XXXIX of 1920, the new portion of the Pinal Code, Section 171-A-1, relating to election offences and inquiries,

was not applicable to this case. The accused Nos. 2 to 5 were charged with the abetment of an election offence, i.e., an application for a second

voting paper by a person who has already voted once at the B�me election, punishable u/s 55(1) of the Madras Act V of 1920. This argument

is that though no doubt abetment of an election offence is punishable under the Indian Penal Code as now amended, Act V of 1920 makes no

provision for abetment of election offences and it is not permissible to borrow the provisions of the Indian Penal Code, where that Code itself

makes provision for the offence in question. By Section 107, Indian Penal Code, a person abets the ""doing of a thing"" in three ways therein set out.

If ""the thing"" in question is an offence, then the abetment of it becomes an offence (Section 108) and the ""offence of abetment"" is constituted

(Section 108, explanation 2), which is thus a separate and distinct offence. ""Offence"" by Section 40 (paragraph 1) and Section 108-A means: (1) a

thing made punishable by the Indian Penal Code; and (2) a thing made punishable by the Indian Penal Code though it is committed without and

beyond British India. Consequently, the abetment of an offence means the abetment in British India of a thing made punishable by the Indian Penal

Code. Section 40, Indian Penal Code, has, however, been extended by amendment. The limitation in paragraph I, confining an offence to a thing

punishable by the Indian Penal Code, has beep relaxed and ""offence"" in Section 109 (inter alia) now denotes a thing punishable under the Code, or

any special or local law. There is no doubt that Madras Act V of 1920 is a local law and it, therefore, seems clear that Section 109 can be applied

to a thing punishable under it. As pointed out, abetment is a separate and distinct offence, provided the thing abetted is an offence; and the thing

abetted here is made an offence by the second paragraph to Section 40, Indian Penal Code. Section 26 of the General Clauses Act shows that an

act may constitute an offence under two or more enactments. In Probodh Chandra v. Corporation of Calcutta 24 C.W.N. 196, Section 40, Indian

Penal Code, was held applicable in order to constitute abetment of an offence under a local law--the Calcutta Municipal Act. I am of opinion that

the accused Nos. 2 to 5 could legally be charged, u/s 55(1) of Madras Act V of 1920 and Section 109, Indian Penal Code. This Criminal

Revision Case must be allowed.

Wallace, J.

I agree. Petitioner charged respondents in this case with abetment of an offence u/s 55(1) of Madras Act V of 1920, the substance of the

charge being that they abetted a case of double voting, by one Krishnaswamy Chetty, at a Municipal election in Trichinopoly. The Sub-Divisional

Magistrate has held that since Section 171-D of the Indian Penal Code specifically provides for such an abetment Section 109 of that Code cannot

be called in aid; and that such abetment is chargeable and punishable only u/s 171-D and not u/s 55(1) of Madras Act V of 1920, read with

Section 40, Indian Penal Code and that since petitioner has not obtained the authority of Government, requisite u/s 196, Criminal Procedure Code,

for a prosecution u/s 171-D, Indian Penal Code, his charge cannot stand.

Petitioner rejoins that since Section 40, Indian Penal Code, which makes Section 109, Indian Penal Code, applicable to an offence u/s 55(1) of

Madras Act of 1920, has not been so far and to that extent repealed, there is nothing to prevent the Court taking cognizance of his complaint.

The decision of this petition turns on the meaning to be given to the words of Section 109, Indian Penal Code. Section 109, Indian Penal Code,

is concerned only with the punishment of abetments, and lays down nothing more, in my opinion, than that if the Indian Penal Code has not

separately provided for the punishment of an abetment as such, then it is punishable with the punishment provided for the original offence. I cannot

road it to mean that, where the Code has set out separately the offence of an abetment and provided for its punishment, it has thereby, without,

saying so, abrogated another Section of the same Code, presumably of equal validity and authority. Unless respondents can go, so far as to

contend that Section 171-D, Indian Penal Code, has wholly abolished Section 55 (1) of Madras Act V of 1920--and they do not go so far--nor

does the lower Court itself, since it dealt with the principal offender himself under that very section, I do not see how the application of Section 40,

Indian Penal Code, to it can be affected.

I admit that the effect of the enactment of Section 171-D, Indian Penal Code, creates difficulties: but, I read Section 109 to mean no more than

this, that if the offence charged will in the opinion of the Court come within the four corners of it, then the punishment for it is the punishment

provided for by that section. I cannot, as I have held, read it to mean that the offence of abetment of double voting can be charged only u/s 171-D,

Indian Penal Code.

It may no doubt be argued that Section 196, Criminal Procedure Code, means that no one should be punished u/s 171-D, Indian Penal Code,

unless the previous authority of Government bas been obtained for his prosecution. On the other band, the detailed procedure set out for putting in

a charge u/s 55, Madras Act V of 1920, has not been repealed and still remains in force. Hence, no Court can refuse a complaint duly put in,

regarding an offence under that Section and that offence being still cognisable by a Court, the Court cannot refuse to apply Section 40, Indian

Penal Code, to an abetment thereof.

I agree with the order proposed by my learned brother.